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Abortion restrictions failing this year in court challenges

Andrew Harris

Bloomberg News

Published: Tuesday, Aug. 20 2013 12:15 p.m. MDT

CHICAGO — State legislatures trying to curtail abortions have suffered a 0-for-8 losing streak after court challenges to their new laws this year.

The laws, all but one signed by Republican governors, drew on ideas from a playbook created by an anti-abortion group. Democrats plan to use the attempted curbs to boost 2014 congressional fundraising and increase voter support, calling the laws part of a "War on Women."

Four states' statutes attacked the core of the U.S. Supreme Court's rulings that a woman has a right to the procedure before a fetus is viable. Efforts to bar abortions after six, 12 and 20 weeks of pregnancy were halted in North Dakota, Arkansas and Idaho. An appeals court struck down Arizona's 20-week ban. Laws imposing restrictions on doctors were blocked in North Dakota and two other states.

Trying to ban abortions before a fetus can live outside the mother's womb "flies in the face" of U.S. Supreme Court rulings, said Paul B. Linton, a lawyer with the Chicago-based Thomas More Society whose group, an opponent of abortion, isn't involved in defending early-pregnancy curbs.

Efforts to limit early-pregnancy abortions are unlikely to succeed, he said.

"I cannot see the Supreme Court upholding any of these laws with respect to the pre-viability applications," Linton said in an interview, adding: "I can't see those laws being upheld by lower federal courts."

A judge in Bismarck, N.D., supported that view on July 22 in temporarily striking down a state law barring abortions at the sixth week of pregnancy, when a fetal heartbeat can typically be detected, except in cases of medical emergency.

"The state has extended an invitation to an expensive court battle over a law restricting abortions that is a blatant violation of the constitutional guarantees afforded all women," U.S. District Judge Daniel L. Hovland wrote.

It has been 40 years since the Supreme Court in Roe v. Wade established a woman's constitutional right to terminate an early pregnancy. Thirty states limited or prohibited abortions at the time. Colorado became the first to legalize it in 1967, after about 80 years of legislation against the procedure in the U.S., according to the pro-choice National Abortion Federation.

The high court reiterated its stance in "Roe" in 1992's Planned Parenthood of Southeastern Pennsylvania v. Casey. The decisions didn't end legislative attempts to curb the procedure.

Leading the anti-abortion campaign in the states are the Washington-based groups Americans United for Life and National Right to Life Committee. The latter organization started lobbying before "Roe," said Mary Spaulding Balch, its state- legislation director.

"Not a single year has gone by where we didn't pass some piece of substantive legislation," she said. "Our state affiliates have been in the trenches from the beginning."

Americans United for Life publishes an annual review of laws in states titled "Defending Life," a guide for lawmakers that contains model legislation.

"We believe that in the end, the abortion issue ought to be left to the states, that it was a serious judicial error for the United States Supreme Court to put itself in the position of being the abortion control board for the country," said Ovide Lamontagne, the organization's general counsel and a two-time Republican candidate for governor of New Hampshire. "We are essentially providing a resource for legislators across the country."

Model bills in "Defending Life" and proposals by state affiliates of the National Right to Life Committee have been the impetus for some of the bills.

"Some people call it the playbook," Jordan Goldberg, state advocacy counsel for the New York-based Center for Reproductive Rights, said of "Defending Life."

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